Moore v. State

1987 OK CR 149, 740 P.2d 731, 1987 Okla. Crim. App. LEXIS 434
Court of Criminal Appeals of Oklahoma·Decided July 13, 1987·No. F-84-65·Published·Cited by 16 cases

Opinions

OPINION

PARKS, Judge:

The appellant, Carl Elliott Moore, was charged, tried and convicted in the District Court of Garfield County, Case No. CRF-82-531, for the following three offenses: Count I, Unlawful Possession of a Controlled Dangerous Substance; Count II, Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute; and Count III, Unlawful Possession of a Weapon in the Commission of a Felony. The jury assessed punishment at a term of nineteen (19) years imprisonment and a fine of Twenty-Thousand ($20,000.00) Dollars for Count I, a term of nineteen (19) years imprisonment and a fine Of Twenty-Thousand ($20,000.00) Dollars for Count II, and a term of ten (10) years imprisonment for Count III; Counts I and II to run consecutively, with Count III to run concurrently with Count II. We reverse.

On November 30, 1982, a police informant made two taped phone calls from the Bureau of Narcotics in Enid to the appellant in Tulsa. The phone conversations were in reference to the purchase of cocaine. The appellant agreed to sell the informant three ounces of cocaine at $2,000.00 an ounce. This transaction was to occur the following day.

On the next day, the informant went to the Bureau of Narcotics where he and his automobile were searched. A transmitter was placed on his chest and a tape recorder was placed in the glove compartment of the informant’s vehicle. The informant was then given $6,600.00 in cash.

The informant drove to Garber where the transaction was to occur. The informant was followed by two narcotics agents, who monitored the transaction. Upon the informant’s arrival at the predisclosed location, the appellant entered the informant’s automobile. The appellant exchanged three ounces of a white, powdery substance, allegedly cocaine, for the predetermined price of $6,600.00 The appellant told the informant that he had a fourth ounce of cocaine if the informant needed it. He declined.

The appellant returned to his vehicle and drove away. A narcotics agent and a Garfield County Sheriff’s unit apprehended the appellant nearby. Upon apprehension, the appellant was found carrying a handgun in his left coat pocket and his right coat pocket contained a blue sock. The sock held an ounce of a white, powdery substance, again allegedly cocaine, and sixty-six one-hundred dollar bills. The informant was also stopped nearby and three ounces of alleged cocaine were recovered. At trial, the State’s expert witness described the white, powdery substance as cocaine.

I.

The appellant raises nine assignments of error before the Court. Since his first assignment has merit, we dispose of the case on that ground alone. In this assignment of error, the appellant contends that the trial court erroneously denied discovery of samples of the substance tested, test reports and the results of the State’s scientific evidence. We agree. Discovery of such evidence was paramount to the appellant’s theory of defense in this case. The appellant’s defense rested upon the so-called “cocaine isomer strategy,” see United States v. Ortiz, 610 F.2d 280 (5th Cir. 1980), which is a sophisticated and technical scientific theory of defense based on the [733]*733molecular chemistry of cocaine. Although this defense has been recognized for several years in the Federal Courts, this is apparently the first time the theory has been brought before this Court.

The defense arises from the somewhat cryptic language of the statute which defines the controlled substance. In Oklahoma, cocaine is defined in 63 O.S.1981, § 2-206(A)(4), to wit:

Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocain-ized coca leaves or extractions which do not contain cocaine or ecgonine.

This definition is almost identical to the federal statute which defines cocaine in Schedule 11(a)(4) of 21 U.S.C. § 812(c) (1976).1

The appellant's expert witness’ testimony was consistent with similar federal cases.2 These experts describe cocaine’s chemical composition as Ci7H2iN04 which has several isomers.3 We hold today that under our statute, all isomers of cocaine are not controlled substances. We arrive at this conclusion for three reasons. First, only one isomer, L-cocaine, is a derivative of the coca leaf, according to the testimony of both the State and defense experts (Tr. 510, 531, 535). See also United States v. Ross, 719 F.2d 615, 617 (2d Cir.1983). Any other “isomer” of cocaine is controlled by statute only if it is “chemically equivalent or identical” with the substance derived from the coca leaf. 63 O.S.1981, § 2-206(A)(4).

Second, we have held that criminal statutes are to be strictly construed. Ritchie v. Raines, 374 P.2d 772 (Okl.Cr.1962). Cf. State ex rel. Thompson v. Ekberg, 613 P.2d 466 (Okl.1980). On its face, this subsection does not prohibit all isomers of cocaine, just those that are “chemically equivalent or identical” with the substance derived from the coca leaf. Therefore, we believe it is a reasonable construction of the subsection to hold that not all isomers of cocaine are controlled.

Third, this Court has held that statutory provisions may be regarded in pari mate-ria, where they are part of the same statute. Ex Parte Higgs, 97 Okl.Cr. 338, 263 P.2d 752 (1953). Regarding subsection (A)(4) in the instant case, this subsection is most appropriately read in pari materia with the other subsections of section 2-206. We initially note that subsections (A)(2), (B), and (C) of section 2-206 all specifically mention the “isomers” of each individual controlled substance included within each subsection.4 We therefore believe that the [734]*734word “isomer” was intentionally omitted from subsection (A)(4).

As a practical matter, this reasoning is supported by the testimony of Robert H. Shapiro, Ph.D., Chairman of the Department of Chemistry at James Madison University. Dr. Shapiro testified that some isomers of cocaine are utilized in various over-the-counter products, such as cough syrup and cold tablets. Another isomer of L-cocaine is D-cocaine, an innocous powder, according to testimony. The physical properties of these isomers are different and distinct from L-cocaine, the controlled stimulant derived from the coca leaf. Therefore, the statute is appropriately limited to substances derived from the coca leaf and those which are chemically equivalent or identical thereto.

Based on this theory of defense, counsel for the appellant intended to show that the substance seized and evaluated by the State was not L-cocaine or its chemical eqivalent, but rather the substance was a harmless isomer of the controlled narcotic. Without the substances actually used by the State in making its evaluation, or the technical reports detailing the State’s examination, the appellant could not successfully raise this defense.

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Moore v. State, 1987 OK CR 149, 740 P.2d 731, 1987 Okla. Crim. App. LEXIS 434 (Okla. Ct. App. 1987).

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